Ahmad Mian State of Jharkhand v. …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J) No. 1220 of 2007 Ahmad Mian State of Jharkhand ------ Versus …… Appellant …… Respondent CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD For the Appellant For the State ----- : Mr. Pankaj Verma, Advocate : Mr. Naveen Kumar Ganjhu, A.P.P. ------ Judgment 07/Dated:07th February, 2024 This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 22.08.2007 and sentence dated 23.08.2007 passed in S.T. No.271 of 2003 (T.R. No.163 of 2007) passed by Sri Kamlesh Mishra, learned Additional District and Sessions Judge, F.T.C-VII, Giridih by which the appellant has been convicted for the offence under Sections 376/511 of the I.P.C and sentenced to undergo R.I for three (03) years and six (06) months. 2. The prosecution case, in brief, is that the complainant has filed Complaint Case No.195 of 2003 against the appellant Ahmad Mian before the learned CJM, Giridih on 18.02.2003 stating therein that on the date of occurrence the prosecutrix along with Witness No.1 (i.e. Imamni Khatoon) had gone to collect dry wood and dry leaf in the Salaidih Jungle and in course of picking up dry wood and leaf the Witness No.1 went away from the vision of the complainant then the accused who is friend of her husband and neighbor suddenly came to the place of occurrence and started abusing and talking with the complainant in indecent words and which was protested by the complainant then accused became angry, thrashed the complainant on the ground and had removed her Sari and Saya up to her waist and tried to commit rape upon 2 her and hence the complainant wanted to save herself and started raising alarm on the illegal act of the accused then the Witness No.1 came to the place of occurrence running and also forbade the accused from doing the illegal act and during which the accused fled away from the place of occurrence. Thereafter the complainant returned back to her house and informed the matter to her husband and Witness No.2 (i.e. Korisha Khatoon) and after hearing the fact the complainant along with her husband went to the Police Station and informed the occurrence orally in the Police Station but the police informed her that they will make enquiry and when no action was taken by the police and no enquiry was done then the complaint case was filed. 3. Heard learned counsel for the appellant and learned APP for the State. 4. It is submitted that the impugned judgment and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the learned Additional District and Sessions Judge has committed illegality by convicting the appellant for the offence under Sections 376/511 of the I.P.C. It is submitted that the allegation against the appellant are false and concocted and no such occurrence had taken place. It
Legal Reasoning
is submitted that there is delay in lodging the FIR. It is submitted that complainant had failed to examine her husband and father in- law or any other male member of the family and as such story given in the complaint is not believable. It is submitted that P.W-1 and P.W-2 has not supported the occurrence as stated by the complainant-informant and as such the allegation levelled against the appellant is false. It is submitted that there is no eye witness of the occurrence and save and except the evidence of the informant there is no eye witness to 3 corroborate those fact of attempt of commit rape. It is submitted that doctor of this case has not been examined. It is submitted that complainant-prosecutrix has not been examined by the doctor to support the allegation of rape. It is submitted that this can be a case of consent between the prosecutrix and the accused-appellant at best. It is submitted that P.W-2 is the mother in-law of the complainant and she had not seen the occurrence. It is submitted that informant has implicated the appellant because the niece of the appellant was abducted by one Gulam Rasool (i.e. the husband of the prosecutrix) and for which the husband of the prosecutrix was convicted for seven years and he had remained in jail for a long period and as such this false case has been instituted by the informant-prosecutrix. It is submitted that there is land dispute between the parties prior to the alleged date of occurrence and as such the informant has lodged the case under the influence of her husband and father in-law. It is submitted that Exhibit-A is the certified copy of the judgment dated 04.03.2006 passed in Sessions Trial by learned Additional District Judge, F.T.C-VII, Giridih by which it is admitted that Idris Ansari was facing trial for abduction of minor daughter by Shakina Bano. It is submitted
Legal Reasoning
that Exhibit-A/1 is the certified copy of the judgment dated 14.07.2006 passed by Sri Indradeo Mishra the then 6th Additional Sessions Judge, Dhanbad in S.T. No.453 of 2002 (arising of Katras P.S. Case No.108/2002) by which the Ghulam Rasool, the husband of the prosecutrix was convicted for the offence under Section 366 and 376 of the IPC and sentenced to undergo R.I for seven (07) years and R.I for seven (07) years respectively. It is submitted that the P.W-3 is the prosecutrix and is an interested witness and has falsely instituted the complaint case against the appellant. It is submitted that there is vital contradiction in the 4 evidence of P.W-2 and P.W-3 i.e. the mother in-law and the prosecutrix and as such their evidence cannot be relied upon. It is submitted that in view of the above, the appellant may be acquitted and this Criminal Appeal may be allowed. 5. On the other hand, learned APP has submitted that the impugned judgment and sentence passed by the learned Court below is fit and proper and no interference is required. It is submitted that P.W-3 is the eye witness of the occurrence and she has fully supported her case against the appellant for making attempt of commit rape upon her. It is submitted that P.W-2 is the mother in-law of the informant and she is also the eye witness of the occurrence and had seen the appellant for trying to commit rape upon the prosecutrix and she has stood the test of cross- examination and as such the evidence of P.W-2 is correctly relied by the learned Court below. It is submitted that P.W-3 is the prosecutrix and she has fully supported her case during her evidence and she has also stood the test of cross-examination and had identified the appellant for trying to commit rape upon her. It is submitted that non-examination of doctor is not fatal as the prosecutrix has fully supported her case. It is submitted that delay has been satisfactorily explained by the prosecutrix for lodging the complaint case as police has not taken any action and due to non- action on the part of police, the prosecutrix has lodged the complaint case before the learned CJM and hence there is nothing on record to show that the complainant has instituted false case against the appellant for trying to commit rape upon her and hence this Criminal Appeal may be dismissed. 6. Perused the L.C.R and considered the submissions of both the sides. 7. It transpires that the occurrence took place on 16.02.2003 5 but the complaint case was filed on 18.02.2003 by the complainant-Shakina Bano, the wife of Gulam Rasool before the learned C.J.M, Giridih i.e. after delay of two days and she has explained that although she had gone to the Police Station and informed the matter along with her husband but police had not taken any action. 8. It transpires that the learned C.J.M, Giridih had examined the complainant on Solemn Affirmation on 24.02.2003 and had also recorded the statement of Enquiry Witness No.1, Imamni Khatoon (i.e.E.W-1) on 28.02.2003 and Kuresha Khatoon (E.W-2) on 04.03.2003 under Section 202 Cr.P.C and has taken cognizance against the appellant for committing the offence punishable under Section 376/511 of the IPC and had issued non-bailable warrant of arrest against the appellant. 9. It transpires that the appellant was granted anticipatory bail by the High Court of Jharkhand vide A.B.A. No.494/2003 on 25.06.2003. 10. After supplying police papers to the accused-appellant, the case was committed to the Court of Sessions on 07.07.2003 and the record was received in the Court of learned Sessions Judge on 23.07.2003. Thereafter, the case was transferred to the Court of learned Additional District and Sessions Judge, F.T.C-VI, Giridih on 27.01.2004. 11. It transpires that the charges were framed against the appellant under Sections 376/511 IPC on 26.03.2004 by Sri S.K. Chandrayagi, learned Addl. District and Sessions Judge, FTC-VII and to which the appellant pleaded not guilty and claimed to be tried. 12. During trial, the prosecution has got examined three (03) witnesses in support of its case, who are as follows:- 6 (i) (ii) P.W-1 is Koresha Khatoon, P.W-2 is Imamni Khatoon, the mother in-law of the prosecutrix and (iii) P.W-3 is Shakina Bano i.e. the prosecutrix, 13. The prosecution in support of its case has got marked the following documents as exhibit, as follows:- Exhibit-1 is the typed copy of the Complaint Case (i) No.195/2003 which has been proved by one Sunil Kumar Sinha as a Court Witness. 14. C.W-1, Sunil Kumar Sinha, who has been examined as Court Witness and who has proved the complaint case as Exhibit-1. 15. Thereafter the appellant was examined under section 313 Cr.P.C on 05.07.2007 and to which he denied the circumstances put forth before him. 16. No defence witness was examined on behalf of the appellant. However, following documents were marked as exhibits which are as follows: (i) Exhibit A is the certified copy of the judgment dated 04.03.2006 passed in Sessions Trial Case (number not mentioned by the Addl. District and Sessions Judge, FTC- VII, Giridih). (ii) Exhibit-A/1 is the certified copy of the judgment dated 14.07.2006 passed in S.T. No.453 of 2002 by Sri Indradeo Mishra, then learned 6th Addl. Sessions Judge, Dhanbad. 17. Thereafter the learned court below, after hearing both the sides has convicted the appellant for the offence under Sections 376/511 IPC and sentenced him to undergo RI for three and half years and hence, appreciation of evidence of the prosecution witnesses will be necessary. 18. It transpires that the learned Court below has convicted the appellant mainly on the ground that the defence has failed to 7 prove that the accused-appellant, Ahmad Mian was anyhow related with Idris Mian and further held that P.W-2, Imamni Khatoon is also a witness. 19. P.W-1 is Korisha Khatoon who has stated during her evidence that she is not aware about the occurrence but she is aware of the complainant, Shakina Bano and the accused Ahmad Mian and she does not know about the occurrence. Although she was not declared hostile by the prosecution but during enquiry she has stated that while she was in her residence then Imamni Khatoon i.e. P.W-2 and Shakina Bano i.e. P.W-3 had gone to the jungle for collecting the leaves and Ahmad Mian had attempted to commit rape. However, the witness further identified the accused as her own Bhaisoor. During cross-examination, she has stated that a case is pending between Gulam Rasool (i.e. the husband of the complainant) and the appellant, Ahmad Mian and the appellant had instituted a case against Gulam in which he had gone to jail. She further stated that case instituted by Shakina Bano against the appellant is false and the appellant has been falsely implicated and as per her information, the prosecutrix Shakina Bano had not gone to the jungle to collect the wood. Thus, from scrutinizing the evidence of P.W-1, it is evident that she has completely denied the occurrence and has stated that the appellant has been falsely implicated by the prosecutrix. She has further stated that previous case is pending between both the sides and the case was instituted by the appellant, Ahmad Mian against the husband of the complainant and in the said case, the husband of the complainant had gone to jail. It is further evident that P.W-1 was made Witness No.2 in the complaint petition and she has completely denied the occurrence 8 and as such she has not supported the prosecution case. Thus, the evidence of P.W-1 cannot be relied upon rather she support the case of the defence. 20. P.W-2 is Imamni Khatoon, who is the mother in-law of the prosecutrix and has stated during her evidence that she along with the complainant Shakina Bano had gone to the jungle to fetch the dry leaf around three years ago and she had gone to some distance and her daughter in-law was not visible. In the meantime, she heard the alarm raised by her daughter in-law, then she returned back and saw that her daughter has been thrashed by the appellant Ahmad Mian and was trying to commit rape upon her after removing her Sari and Saya up to the waist, then she protested and then the appellant fled away. Thereafter they returned back to their house and the prosecutrix narrated all the facts to her Gotni Korisha Khatoon (i.e. P.W-1) and her husband Gulam Rasool then Shakina and Gulam Rasool went to the Police Station and then her daughter in-law instituted the present case in the Court. During her cross-examination, she has shown ignorance that one Sahbano, niece of the accused was kidnapped and Gulam Rasool (i.e. her son) had gone to jail for around one month. On being further questioned, she has denied that her son had remained in jail for around eight (08) months and he was also convicted in the said case. She has further denied the suggestion that there were several cases between her husband and father in-law (Barkati Mian) on the one hand and the appellant on the other hand. She has denied the suggestion that even one Firoz, who is nephew of the appellant, had also instituted a case against her husband. She further admitted that there are houses of hundred persons in the village but they had not informed about the occurrence except her 9 son and the Gotni of P.W-1 i.e. Kuresha Khatoon. She further stated that there was some scratch on the back of her daughter in- law when she was thrashed but she had not treated her daughter in-law and her daughter in-law had not been treated by any doctor. She has denied the suggestion for falsely implicating the accused. Thus, from scrutinizing the evidence of P.W-2, it is evident that she is the mother in-law of the complainant- prosecutrix and has tried to support the prosecution case. However, during cross examination, she has shown ignorance about the case instituted by the appellant and her nephew and for which her son had remained in jail for eight months and was lastly convicted which is evident from Exhibit-A/1 which is the certified copy of the judgment and sentence dated 14.07.2007 passed by then 6th Additional Sessions Judge, Dhanbad in S.T. No.453 of 2002. Thus, P.W-2 is an interested witness and hence her evidence is not reliable. 21. P.W-3 is Shakina Bano (i.e. the prosecutrix, who has stated during her evidence that she along with her mother-in-law had gone to jungle to fetch wood and leaf and they were separate after some time and in the meantime the appellant Ahmad Mian came there and started misbehaving with her and also thrashed her on the ground and had removed her Sari and Saya and started trying to commit rape upon her and upon which she raised alarm, then her mother in-law arrived there and started abusing the appellant and also started pelting stone upon her then accused fled away. Thereafter she along with mother in-law returned back to her house and informed the matter to her younger mother in-law Korisha Khatoon and her husband then she and her husband came 10 to Parson out post (O.P) and informed about the occurrence there and police had assured that they will investigate but the police did not come and hence she has instituted the complaint case through her counsel and her counsel had prepared the complaint case and she had put her L.T.I. She has further stated that the witness Korisha Khatoon is in collusion with the appellant. During cross-examination she stated that she was married eight years ago and one Idris is the younger brother of the appellant but she is not aware that Idris has got one daughter or not. She has shown ignorance that her husband had gone to jail. She has further shown ignorance that her husband had gone to jail in kidnapping of daughter of Idris Mian and her husband has been convicted for a term of seven years in the said case and he had remained in jail for around eight months. She further denied that there was no previous case between her family members and the family members of the appellant. She further stated that her statement was recorded by Daroga of Parson P.S and she had put her L.T.I but Daroga had not came to village for two days then she came to Giridih with her husband. She further stated that her father in-law, Idris Mian had not arrived to Giridih and on the date of occurrence her father in- law was not in the residence. Thus, from scrutinizing the evidence of P.W-3 it is evident that she is wife of Gulam Rasool who had been convicted vide judgment dated 14.07.2006 passed in S.T. No.453 of 2002 (arising of Katras P.S. Case No.108/2002) by Sri Indradeo Mishra the then 6th Additional Sessions Judge, Dhanbad for the offence under Sections 366/376 IPC in the matter of kidnapping and committing rape upon the niece of the appellant which is evident 11 from Exhibit-A. 22. It is further evident that the prosecutrix in support of her case neither examined her husband nor her father in-law to corroborate the evidence. 23. It is further evident that P.W-1 Korisha Khatoon who is named as Witness No.2 in the complaint case and younger mother in-law of the complainant proseuctrix has not supported the prosecution case rather she has stated that no such occurrence took place and the complainant-prosecutrix has falsely implicated the appellant. 24. It is evident from the evidence of P.W-3 that she has tried to implicate the appellant only to take revenge for conviction of her husband in the case instituted by the nephew of the appellant, who had instituted the case against one Gulam Rasool i.e. the husband of the complainant-prosecutrix for kidnapping and committing rape upon her minor daughter. Thus, the complaint case filed on behalf of the complainant and the evidence of P.W-2 and P.W-3 are bundle of lies. 25. In view of the above discussions made above, the judgment of conviction dated 22.08.2007 and order of sentence dated 23.08.2007 passed in S.T. No.271 of 2003 (T.R. No.163 of 2007) passed by Sri Kamlesh Mishra, learned Additional District and Sessions Judge, F.T.C-VII, Giridih, are set aside and the appellant, Ahmad Mian is acquitted for the offences under Sections 376/511 of the I.P.C and the appellant, Ahmad Mian is discharged from the liability of bail bonds. 26. Thus, the Criminal Appeal (SJ) No.1220 of 2007 is
Decision
allowed and stand disposed of. (Sanjay Prasad, J.) Saket/ A.F.R.